Ask the Probate Judge—Out of State Real Property
Q: I own houses in New
Mexico and Arizona, but I consider New Mexico home. Both houses are titled in
my name only. My will was made in New Mexico. When I die how do my heirs get
clear title to the houses?
When you own property titled in your sole name, your personal representative (executor) must open a court probate proceeding to pass clear title to the property upon your death. Often a probate is filed in the court in the county where you are domiciled. Your domicile is the place you consider to be your permanent place of abode.
However, the probate rule for real property (houses, land, ranches, etc.) is different. A court probate to pass real property to heirs or devisees named in the will must be filed in the county of the state where the property is located. If you own property in New Mexico and Arizona, your personal representative will have to file probate cases in both states. The probate in Arizona is called an ancillary (additional) probate.
A deceased person could also own property in a New Mexico county other than the usual place of domicile. If so, New Mexico law requires a "Notice of Administration" to be recorded with the County Clerk for each New Mexico county (other than the county where the probate is opened) where the decedent owns real property.
Once a probate is opened, the personal representative of the estate can sign new deeds to the houses. The new deeds pass the houses from the estate to the heirs or devisees. Or the personal representative could sell the property to new owners and divide the sales proceeds among the heirs or devisees. The new owners would then change the names on the property tax assessment records and acquire homeowner's insurance in their own names.
Keep in mind that a will does not affect property titled in joint tenancy, named in a transfer on death deed (TODD), or held by the trustee of a living trust. Such property passes automatically (outside of the will) to the surviving joint tenant, TODD beneficiary, or trust beneficiary. Adding a joint tenant to your property could pose problems, too lengthy to discuss in this limited space.
For people who own property out of state and wish to avoid probates in several states, a revocable living trust may be a good option. If you create a living trust, make sure that you or your attorney takes the proper steps to transfer all of your real estate into the name of the trustee of the trust.
8 2002, Merri Rudd &
Albuquerque Journal, All Rights Reserved